Chevron Oil Co., Standard Oil Co. of Tex. Div. v. NLRB, 29789.

Citation442 F.2d 1067
Decision Date04 May 1971
Docket NumberNo. 29789.,29789.
PartiesCHEVRON OIL COMPANY, STANDARD OIL COMPANY OF TEXAS DIVISION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John B. Abercrombie, William R. D'Armond, Samuel E. Hooper, Houston, Tex., for Petitioner Chevron Oil Co., Western Division; Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Elmer P. Davis, Director, Region 16, N. L.R.B., Fort Worth, Tex., Charles N. Steele, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Herman M. Levy, Atty., N.L.R.B., Washington, D. C., for respondent.

Before WISDOM, THORNBERRY and DYER, Circuit Judges.

THORNBERRY, Circuit Judge:

This case is before the Court on petition to review and set aside and cross-application to enforce an order of the National Labor Relations Board. The Board concluded that Petitioner, Chevron Oil Company, Standard Oil Company of Texas Division,1 had refused in violation of § 8(a) (5)2 of the National Labor Relations Act (the Act), 29 U.S.C.A. § 158(a) (5), to bargain in good faith with Respondent, Local 826, International Union of Operating Engineers, AFL-CIO. In addition, the Board determined that Chevron interfered with, restrained and coerced its employees in violation of § 8 (a) (1) of the Act, 29 U.S.C.A. § 158(a) (1),3 and that the Company violated § 8(a) (1) and (3)4 of the Act, 29 U.S. C.A. § 158(a) (1) and (3), by withholding wage increases from the bargaining unit represented by the Union.

The instant controversy began when the International Union of Operating Engineers, AFL-CIO was certified on October 28, 1966 as the collective bargaining representative of the production and maintenance workers employed at the Snyder, Texas plant of Chevron Oil Company, Standard Oil of Texas Division. Thereafter the Union submitted a contract proposal, and Chevron responded with a counter-proposal. Although the parties engaged in bargaining sessions over an eleven-month period,5 they were unable to negotiate a contract acceptable to both sides. During the course of the negotiations, the Union filed the unfair labor practice charges enumerated in the initial paragraph of this opinion. Following a hearing the Trial Examiner found that Chevron had refused to bargain in good faith with the Union on and after January 31, 1967, and that by the statements of a supervisor, Chevron had interfered with its employees' rights. Accordingly, the Trial Examiner ordered the Company to cease and desist refusing to bargain with the Union and interfering with its employees' rights. A threemember panel of the Board, while substantially ratifying the findings, conclusions and recommendations of the Trial Examiner, modified the Examiner's report in two aspects: (1) It found that the Company had failed to negotiate in good faith on and after December 16, 1966; and (2) it determined that since Chevron's withholding of wage increases interfered with its employees' rights, the employees should be made whole for the losses they sustained. The Board adopted the Trial Examiner's order with the additional requirement that Chevron make whole the employees in the unit for the monetary losses they suffered as a result of the Company's withholding action. Chevron filed its petition for review; the Board answered and filed a cross-application for enforcement.

In considering the petition for review our task is to measure the Board's conclusions against the substantial evidence standard: We must enforce the Board's conclusions if they find "support in the record as a whole * * * `even though the court would justifiably have made a different choice had the matter been before it de novo.'" N.L.R.B. v. Fant Milling Co., 360 U.S. 301, 309, note 10, 79 S.Ct. 1179, 1184, 3 L.Ed.2d 1243, 1249 (1959), enforced on remand, 5th Cir. 1959, 272 F.2d 773; N.L.R.B. v. Herman Sausage Co., 5th Cir. 1960, 275 F.2d 229, 231. We therefore carefully examine the evidence, mindful that the Board must begin with the presumption that the parties were conducting themselves in good faith in accordance with the dictates of the law, and that the burden of proving unlawful conduct is borne by the General Counsel for the Board. The Board is permitted, of course, to draw inferences from the evidence. Before the inferences are entitled to acceptance by this Court, however, they must be founded upon proved facts, not upon speculation or suspicion. See, e. g., N.L. R.B. v. Alva Allen Industries, Inc., 8th Cir. 1966, 369 F.2d 310; N.L.R.B. v. Murray Ohio Manuf. Co., 6th Cir. 1964, 326 F.2d 509; N.L.R.B. v. Putnam Tool Co., 6th Cir. 1961, 290 F.2d 663; N.L. R.B. v. F. H. McGraw & Co., 6th Cir. 1953, 206 F.2d 635; N.L.R.B. v. Sheboygan Chair Co., 7th Cir. 1942, 125 F.2d 436.

I. § 8(a) (1) Charge: Coercion of Employees

During the "happy hour" of a Company awards dinner on December 6, 1967, Charles Kirkvold, Chevron's production superintendent for the Snyder division, engaged in conversation with two employees. The Board found that Kirkvold stated, in essence, that the Company was compelled to take a hardnosed attitude toward the Union employees at the Snyder plant and that if the employees would vote the Union out some changes would be made. When one of the employees stated that voting the Union out would be tantamount to losing their jobs, Kirkvold replied that he would guarantee they would retain their jobs. The Board concluded that Kirkvold's statements were violative of § 8(a) (1). We believe there is substantial evidence in the record to support the Board's finding. Accordingly, we enforce the Board's order as to this violation.

II. § 8(a) (5) Charge: Refusal to Bargain in Good Faith

In determining that Chevron was committed to, and utilized, a purposeful bargaining strategy designed to hamper the Union's performance of its representative functions and to undermine the Union in the eyes of its employees as an effective collective-bargaining agent, the Board attached particular significance to the following factors: (a) The Company's alleged display of hostility toward the Union during the pre-election period; (b) the Company's delays subsequent to the election in scheduling bargaining meetings and in furnishing certain information to the Union; (c) the statements made by Kirkvold at the December 6, 1967, awards dinner; (d) Chevron's refusal "to consider any contract which did not contain onerous restrictions on union rights as evidenced by its insistence upon the combined inclusion of `management rights' provisions, a rigid no-strike clause, and no resort to arbitration"; and (e) the Company's continued rejection of Union proposals. We discuss these factors — the underpinnings of the Board's decision — in sequence.

(a) Chevron's pre-election campaign.

Prior to the October 20, 1966, representation election, D. T. Magee, Chevron's production superintendent6 for the district within which the Snyder plant is located, purported, in a series of oral and written communications to the employees, to state the Company's position vis a vis the Union. The Board concluded that Chevron, through Magee, had displayed an "unmistakable aversion" to the Union. Although the Board did not suggest that the campaign itself constituted an unfair labor practice, it determined, contrary to the Trial Examiner's finding, that the Company's pre-election attitude and conduct toward the Union was an indicia of bad faith in subsequent contract negotiations. We disagree. A canvass of the pre-election communications leaves us with the firm conviction that Chevron's production superintendent conducted an active campaign to defeat the Union, and that it was clear to the employees that the Company preferred them to remain unorganized. The Company was entitled, however, to its own opinion. The mere fact that it enunciated its stance does not, in itself, create a presumption of bad faith bargaining during later contract negotiations. We note that the superintendent did not state that the Company would not negotiate in good faith with the Union. To the contrary, he specifically told the employees, "The Company does not feel that a Union would be in the best interests of the employees. We believe that the Company can do more for you without a Union, although if the majority of you vote for the Union the Company will bargain in good faith with the Union on your wages, hours, and working conditions." (Emphasis supplied). We believe, as did the Trial Examiner, that the evidence simply does not justify the inference that the Company, once the election results had been announced, was not prepared to accept and deal in good faith with Local 826 as the employees' agent. See N.L.R.B. v. Reeves Broadcasting & Development Corp., 4th Cir. 1964, 336 F. 2d 590. See also Acme Products, Inc. v. N.L.R.B., 8th Cir. 1968, 389 F.2d 104; Dierks Forests, Inc. v. N.L.R.B., 8th Cir. 1967, 385 F.2d 48; N.L.R.B. v. Murray Ohio Mfg. Co., supra.

(b) Chevron's delay in furnishing information to and commencing negotiations with the Union.

Local 826 was certified as the employees' bargaining agent on October 20, 1966. By letter dated November 8, Frank Parker, Local 826's business manager, requested Magee to furnish the Union with information concerning pensions and insurance benefits, classification and pay rates, and paid vacation, holiday, and leave policies then in effect. He also indicated that the Union was ready to begin negotiations after November 20 and asked to be advised of dates available to the Company for meetings. On November 21, 1966, Parker replied that Company representatives would be prepared to meet on December 13, 14 or 15, and stated that "at this time we can begin to discuss the information requested in your letter of November 8, 1966." Parker, by letter of November 28, suggested that the first...

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